Anzac Square Arcade [2004] QBCCMCmr 677 (22 December 2004)

TAKE NOTICE that pursuant to a request by Dimitri Conomos and Paul Georges, the Occupiers of Lot 19:

I hereby stay the operation of the following orders as issued by a departmental adjudicator (PJ Hanly) on 8 September 2004 in response to a dispute resolution application by the Body Corporate for Anzac Square Arcade community titles scheme 27978:

"I further order that the occupiers of lot 19 shall, within 30 days of the date of the committee’s decision on that application, comply with such conditions as the committee might impose in approving the works.

I further order that, in the event the committee does not approve the present food use, the occupiers of lot 19 shall cease the sale of such food items as the committee does not approve within 24 hours of having been notified of the committee’s decision in that regard".

I further order that this stay operates until the outcome of the appeal of the orders issued by PJ Hanly on 8 September 2004 is decided, or until the appeal is otherwise discontinued, or until the stay is amended or revoked by further order, whichever is the earliest.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0122-2004A

"Anzac Square Arcade" CTS 27978

Background

On 1 March 2004, the Body Corporate for Anzac Square Arcade community titles scheme 27978 filed a dispute resolution application with the Commissioner for Body Corporate and Community Management under the Body Corporate and Community Management Act 1997 (the Act).

The "Anzac Square Arcade" community titles scheme is primarily used for commercial purposes. A number of lots included in the scheme are used for the retail sale of takeaway food. The dispute resolution application lodged by the Body Corporate on 1 March 2004 concerns the use of Lot 19, which is currently occupied by Mr Dimitri Conomos and Mr Paul Georges. I understand that Mr Conomos and Mr Georges operate a business called "Buzz Café & Espresso Bar" from Lot 19.

There were two broad issues raised in the dispute resolution application submitted to the Commissioner on 1 March 2004. Firstly, the application raised a question of whether or not the Owners and/or Occupiers of Lot 19 had contravened the by-laws for "Anzac Square Arcade" by making certain alterations and improvements to the lot, without the approval of the Body Corporate. The second issue raised in the application was whether or not the Occupiers of Lot 19 were contravening the by-laws for the Body Corporate by selling particular takeaway foodstuffs from Lot 19.

On 8 September 2004, a departmental adjudicator issued the following orders determining the application:

Mr Conomos and Mr Georges have commenced an appeal against the whole of Mrs Hanly’s decision of 8 September 2004. I have before me a copy of the relevant notice of appeal which is dated 29 October 2004.

I also note that in material submitted in support of a new dispute resolution application filed with the Commissioner^[1], Mr Conomos and Mr Georges claim that on 13 September 2004 they sought Body Corporate approval for the "fit-out/renovation works" and for approval of particular foods currently being sold from Lot 19 in accordance with the first and third of Mrs Hanly’s orders of 8 September 2004. However, I understand that both requests for approval were refused by the Body Corporate on 22 September 2004. In addition, I understand that the Body Corporate has purported to require Mr Conomos and Mr Georges to make particular alterations to Lot 19 in order to return the lot to the layout that was in place prior to the alternations and improvements in dispute.

On 17 December 2004, Solicitors for Mr Conomos and Mr Georges wrote to the Commissioner and requested that Mrs Hanly’s orders of 8 September 2004 be stayed pending the outcome of the appeal. It is clear that Mr Conomos and Mr Georges are primarily concerned with the second and fourth of Mrs Hanly’s orders.

Unfortunately, Mrs Hanly is currently unavailable, and is unable to consider the request for a stay herself. Therefore, the Commissioner has referred Mr Conomos and Mr George’s request to me as another departmental adjudicator for consideration.

Determination

The Act includes provision allowing both adjudicators and the District Court to stay the operation of an adjudicator’s order in order in order to secure the effectiveness of an appeal of the order. Specifically, section 291 of the Act provides the following:

It seems likely that the Body Corporate would prefer Mrs Hanly’s orders of 8 September 2004 to be implemented as promptly as possible. However, it seems to me that an order staying the operation of the second and fourth of Mrs Hanly’s orders issued on 8 September 2004 will assist in securing the effectiveness of the appeal of those orders, particularly insofar as the Body Corporate is now relying on the terms of those orders to require Mr Conomos and Mr Georges to make alterations to Lot 19, and to desist from selling particular foodstuffs from Lot 19. I do not consider that it is necessary for me to stay the operation of the first and third of Mrs Hanly’s orders which appear to have already been carried out.

As a result, I have issued an order staying the operation of the second and fourth of Mrs Hanly’s orders. This stay will have effect until the outcome of the appeal is decided or until the appeal is otherwise discontinued, or until the stay is amended or revoked by further order, whichever is the earliest.

^[1] Reference 0796-2004, currently in abeyance at the request of Mr Conomos and Mr Georges

Number of Scheme:	27978
Name of Scheme:	Anzac Square Arcade
Address of Scheme:	208 Adelaide Street Brisbane, Queensland

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Anzac Square Arcade [2004] QBCCMCmr 677 (22 December 2004)